On November 17, 2019, Newsday
revealed that over a three-year period it had used Fred Fieberg, co-founder of the Fair Housing Justice Center, and Robert Schwemm, Professor of Law at Kentucky College of Law and an expert on Fair Housing Laws, to conduct tests of real estate agents doing business from the New York City
line to the Hamptons; from Long Island Sound to the South Shore. They used eighty-six paired matches, thirty-nine Black and White, thirty-one Hispanic and White, and sixteen Asian and White. Newsday
confirmed that the agents had houses to sell by doing an online search of the Zillow Website. According to the Newsday
report, forty-percent of the tests demonstrated disparate treatment in violation of Federal Fair Housing Laws. The breakdown was forty-nine percent of Blacks, thirty-nine percent of Hispanics, and nineteen percent of Asians experienced disparate treatment, each being equally qualified to purchase the properties as were the Whites with whom they were paired. The price range of the homes were reported to be from $400,000 into the millions.
Twelve real estate brokerage firms were tested. According to Newsday,
the firms selected represented more than half of the homes sold on Long Island during 2017. Two of the firms are doing business in the Hamptons. Of the six agents tested associated with these firms, one was accused of improper conduct with respect to Fair Housing Laws. Ninety-three agents who were tested were notified by letter describing the results of the test and offered the agents and their corporate leaders the opportunity to view the videos with Newsday.
Twenty-one accepted the invitation. The investigation also concluded that of the six Long Island Board of Realtors whose Fair Housing classes were audited, one was found to have met the required standards of state-mandated instruction for real estate agents. As a result, LIBOR has temporarily suspended its Fair Housing instruction, as has the New York State Association of Realtors.
An immediate response to the Newsday
Report was the scheduling of a hearing by the New York Senate held on December 12th at Hofstra University in Nassau County. Invitations to testify were sent to Public officials, among them, Suffolk County Executive, Steve Bellone
, Nassau County Executive, Laura Curran, New York's Attorney's General's Office, the New York Human Rights Commission, the New York State Association of Realtors, Fred Frieberg, Executive of the Fair Housing Center, Roger Schwemm, Professor of Law at the Kentucky College of Law, Elaine Gross, President and CEO of ERASE Racism based in Syosset, Ryan Gorman, President and CEO of Realogy Holding Corp., which owns four of the companies tested.
The Senate committee also invited sixty-seven real estate agents who were subject to appear. None did. The committee stated that the agents would be subpoenaed to testify.
The general consensus expressed during the five-hour hearing was that victims of discrimination don't usually know it. They may be treated very cordially, don't know the laws, and wouldn't know what to do about it if they did know.
The consensus was that the most effective way to root out discrimination by real estate brokers was through the kind of testing that resulted in the Newsday
report. It was pointed out by those who testified that the government agencies and the non-profit organizations who conducted testing were not adequately funded. That the agencies, such as the Department of State that licenses real estate agents and the Attorney General's Office that prosecutes offenders are also underfunded.
The use of testers has been upheld by the courts as the most effective way to prevent and punish real estate agents who engage in illegal discrimination.
On November 25th, in response to the Newsday
report, State Senator James Gaughran introduced a bill in the Legislature which would grant statutory authority to the Department of State to suspend and revoke the license of real estate brokers, as well as impose fines, an authority that the DOS already has but not codified in the Real Property Law.
When Mr. Gorman testified on behalf of Realogy that he was not aware of the alleged violations by the agents associated with his company, State Senator John Liu made the point that the conduct of the agents under his company's supervision should not result only in the discipline or disassociation with the agent, but that the company that profited should also be penalized.
When Duncan MacKenzie, Chief Executive of NYSAR's sixty-thousand plus member real estate Association, was asked by one of the committee members if he thought the Department of State was living up to its responsibilities to monitor real estate agents, his response was they didn't have the resources sufficient to do so.
On Monday, December 16th, Governor Andrew Cuomo
announced new regulations for real estate professionals to help combat housing discrimination. "The new regulations mandate enhanced disclosure by real estate professionals to help ensure prospective home buyers, renters, sellers and landlords receive ample information about their rights and protections under New York State Law." The regulations also require the posting of notices prominently displayed on all brokers websites and at open houses. Currently, HUD makes an Equal Housing Opportunity Poster available to real estate brokers that summarizes the Federal Fair Housing Laws. There is no law currently requiring a broker to post the notice, but should a broker be investigated for violation of the law and the poster is not displayed, the failure to do so is considered evidence of discrimination.
The governor's announcement also requires that "Every entity approved to provide instruction pertaining to fair housing and/or discrimination in the sale or rental of real property or an interest in real property, must record video and audio of the instruction for every course in its entirety. The approved entity is required to keep the recording for one year following the date the course was delivered." Until July of 2008, no instruction in Fair Housing was required for license renewal. Since then, at least three hours of Fair Housing education is required for license renewal every two years. The exemption from all continuing education including Fair Housing for brokers and associate brokers license and active in real estate before 2008, will end in July, 2021. Additional training for real estate instructors who teach Fair Housing is also included in the requirements.
In 2009 the Suffolk County Legislature passed legislation regarding transparency in the purchasing of shares in residential cooperatives. The law requires a notice of acceptance of the proposed purchaser within ten days of its receipt, and forty-five days to approve or deny the application with a reason in writing. Nassau passed a similar law in December of this year requiring a notice of receipt of an application within fifteen rather than ten as required by Suffolk County. Legislation is pending before the New York State Legislature that would provide a law regarding residential cooperative applications that would apply statewide.
Given the strong reaction to the Newsday
report among public officials and Fair Housing advocates, we are likely to see further actions taken to deter and penalize Violations of Federal, State, and Local Fair Housing laws.
John is a St. John's University graduate, licensed Real Estate Broker, DOS Certified Instructor, and real estate consultant. He previously taught at NYU, LIU, and The Cook Maran Real Estate School, which he helped found.